Under New Fifth Circuit Case Law, Motion to Reopen and to Reconsider May be Filed while Abroad

When an Immigration Judge issues a decision in your case, you have three options if you are unhappy with the result. You may file an appeal of the Judge’s decision with the Board of Immigration Appeals or you may file a motion to reopen or a motion to reconsider with the Judge who issued the decision in your case. Your managing attorney at the Verdin Law Firm will recommend which of these options, if any, would be the best choice for your particular case.

When you file an appeal of the Judge’s decision, you are essentially asking the Board to review the Immigration Judge’s decision. When you file a motion to reopen or reconsider, rather, you are requesting that the Judge reexamine his or her decision in some particular way. These motions will be the focus of this blog post.

There are generally two types of motions to reopen. The first applies to orders of removal that have been entered in absentia, i.e., where the respondent (the alien who has been placed in removal proceedings) was not present for his or her hearing. To succeed on a motion to reopen an in absentia order of removal, the respondent must show either that: (1) he did not receive proper notice that he was placed into removal proceedings and/or that he did not receive proper notice of the date, time, and place of his removal hearing before the Immigration Judge, or (2) that the respondent did receive adequate notice, but that exceptional circumstances excused her failure to appear for her removal hearing.

The second type of motion to reopen applies to removal orders that were issued after a hearing where the respondent appeared by herself or with her attorney before the Judge to present her case. To succeed on this type of motion to reopen the respondent must show that new evidence exists, that could not have been discovered or presented at the former hearing, which affects the legal result that was reached by the Immigration Judge.

A motion to reconsider is a request that the Immigration Judge reexamine his original decision in light of additional legal arguments, a change of law, or an argument or aspect of the case which was overlooked. To success on a motion to reconsider the respondent must show that the original decision was defective in some regard.

A respondent’s right to file one motion to reopen and one motion to reconsider is provided by statute, specifically sections 240(c)(6)(A), 240(c)(7)(A) and 240(b)(5)(C) of the Immigration and Nationality Act (INA or the Act). The INA also imposes certain limitations on the filing of these motions. For example, sections 240(c)(6)(B) provides any motion to reopen an order of removal not entered in absentia must be filed within 30 days of the date of the decision of the Immigration Judge.

When a respondent files a motion to reopen an in absentia order of removal, section 240(b)(5)(C) of the Act guarantees that, with the filing of the motion, the respondent’s removal is stayed until the Immigration Judge has issued a decision. In other words, Immigration and Customs Enforcement (ICE) cannot remove that person until the Immigration Judge has issued a decision on his motion. When a respondent files any other type of motion to reopen or a motion to reconsider, his removal is not stayed. ICE may remove him after he has filed his motion and while he is awaiting the decision of the Immigration Judge.

Prior to September 27, 2012, per federal regulation 8 C.F.R. § 1003.23(b)(1), that respondent’s removal would result in an automatic withdrawal of any such motion. This rule, commonly called the “departure bar,” applied to all departures from the United States; it did not matter whether the respondent departed voluntarily or was forcibly removed by ICE.

That changed on September 27, 2012, with the Fifth Circuit’s decisions in Garcia Carias v. Holder and Lari v. Holder. In those decisions, one involving a motion to reopen and the other involving a motion to reconsider, the Court of Appeals for the Fifth Circuit held that a respondent’s right to file one motion to reopen and one motion to reconsider trumps the departure bar. In other words, a respondent’s departure or removal from the United States does withdraw any motion to reopen or motion to reconsider she filed with the Court. Furthermore, both decisions make clear that a respondent may file such a motion from abroad; the motion need not be filed while the respondent is in the United States.

Therefore, so long as a motion complies with the limitations on filing imposed by the INA, such a motion may be filed from abroad. The Immigration Judge is required by law to consider the merits of such motion, and determine whether it merits a grant or a denial.

Contact us for more information on a motion to reopen and to reconsider.